In celebration of Thanksgiving, I give you our annual Turkey Torts of civil and criminal cases that add liability to libations on this special day (with past cases at the bottom). Many criminal defense attorneys and torts attorneys give special thanks for a holiday that can involve copious amounts of alcohol, strained family relations, over-the-hill amateur football players, “Black Friday” sale stampedes, and novice cooks. These cases are why Johnny Carson said “Thanksgiving is an emotional holiday. People travel thousands of miles to be with people they only see once a year. And then discover once a year is way too often.”

Have a happy and safe Thanksgiving!

A recent survey of New York doctors found that 60 percent saw an increase in ER visits for cooking wounds and turkey carving accidents. Some 47 percent saw an increase in gastrointestinal complaints from food poisoning or overeating. Some 42 percent saw an increase in burn wounds related to cooking, including deep frying of turkeys. Finally, 15 percent reported increases in orthopedic injuries from Thanksgiving-related activities, such as the annual “Turkey Bowl.”

Thanksgiving Day is generally the leading day for home cooking fires with 1,550 across the country — 230 percent above the average number of fires per day.

The cases from injuries last year are just now being filed under the statute of limitations, but it has been another bumper crop of Thanksgiving torts. In 2018, roughly a couple hundred salmonella cases were already reported before Thanksgiving morning even arrived this year.

We have yet to see a filing over the emotional distress caused by this year’s microwave Turkey prank where college kids are texting their parents to ask how long to cook their turkeys in the microwave. Some things are happily left out of the courts.

We have a slew of unwanted guests at Thanksgiving dinner cases. Last year, David Williams was arrested after he argued with his sister because she did not want the 56-year-old Williams to bring his girlfriend to Thanksgiving dinner.Williams preceded to attack his sister’s 54-year-old boyfriend with a knife after the boyfriend tried to step in and defend her. The result was Thanksgiving dinner paid for by the state with hundreds of other inmates.

That is still better than the 2018 Thanksgiving dinner where a dispute over the contribution of a crack to the meal resulted in a bizarre series of events from an assault with an antenna to a vacuum being thrown through a window to an eventual murder charge.

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There is one Good Samaritan that will hopefully have a less eventual holiday this year. A Connecticut man was thrown off a bridge on Thanksgiving last year after he intervened to protect a woman in an argument with her boyfriend. The victim and his friend told Gregory Rottjer (left) to “chill out” and allegedly Rottjer and his friend Matthew Dorso became enraged. Rottjer then threw the Good Samaritan off the Derby-Shelton Bridge — a 45 foot plunge that almost killed him. What is unbelievable is that the woman, Jennifer Hannum, was also charged in the case in resisting one of the officers who came to find her boyfriend. The Connecticut Post reported that the three fled the bridge but one of them dropped a cellphone at the scene. Rottjer allegedly admitted to police “I did it. I threw him over the bridge.” Rottjer was charged with criminal attempt at murder, first-degree assault, and first-degree reckless endangerment. Dorso was charged with third-degree assault and Hannum was charged with interfering with an officer. This is clearly a new plot twist on Luke 10:25-37.

David Williams, 56, finally resolved who will not be invited to Thanksgiving. He is clearly off the list. The Queens man in 2017 became angry about who would be invited, specifically whether his girlfriend would be included. When his sister Dianna Gadson, 66, objected, he grabbed a knife. The rest is Norman Rockwell meets Jerry Springer.

Williams allegedly got into a shouting match and then shoved Gadson, prompting her boyfriend, Silas Stewart, 54, to intervene. Williams is quoted as saying “I want you the f–k out of here” before stabbing Stewart in the chest with a kitchen knife. He then fled.

Likewise, no one was hurt when a wife reportedly varnished her turkey. Her husband decided earlier to put some varnish in a container in the refrigerator. The wife proceeded to baste the turkey with it. The guests remarked on how picture perfect it looked but then discovered that beauty is only skin deep.

The lawsuit alleges that the defendants tried to cover up the crime by getting rid of the leftovers from Thanksgiving but several samples of the defiled dessert were preserved. The inmates required stomach pumping and emergency room treatment. They are seeking $1 million for “the negligent, intentional, careless and reckless conduct” from the city, the Correction Department, the jail’s correction officers and named staff. This is going to make this year’s dinner . . . well . . . awkward.

The 2017 cases include a Georgia company that is likely to conclude that no good deed goes unpunished. The TOYO Tire plant arranged for a catered Thanksgiving celebration over two days in White, Georgia. The result was devastating its workforce after the catered meal produced a salmonella outbreak in its ranks. Some 1,800 ate the catered meal.

According to some reports, James Graham, 48, was upset with how much his 16-year-old nephew was eating at Thanksgiving. He response was to go up to his room, retrieve a shotgun and shoot his nephew to death. According to his brother, Graham told Freland Pridge “You know you better slow down after all that eating.” Pridge reportedly responded “My grandmother made this for me and I’m going to eat this.” That is when Graham went for his shotgun.

Butterball is a company familiar with lawsuits that are part of producing a large share of the some 44 million turkeys sold each year for the holiday. However, Butterball this year is the plaintiff rather than the defendant in a lawsuit against an Australian company. The North Carolina-based company is suing a small wine outfit, McWilliam’s Wines, for one of its wines labeled Butterball Chardonnay. The lawsuit in North Carolina claims a violation of its trademark and that the use of “Butterball” as a mark will undermine “The consumer goodwill associated with the BUTTERBALL Marks is one of Butterball’s most valuable assets. Accordingly, the integrity of the BUTTERBALL Marks is extremely important to Butterball and crucial to the continued vitality and growth of Butterball’s business.”

Of course, no one would confuse a bottle of Chardonnay with a Turkey, but that does not seem to matter under our increasingly absurd copyright and trademark laws.

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Last year, Shawtaine Hayes, 37, was charged with aggravated assault and aggravated battery charge for threatening one woman and stabbing a man. Last Thanksgiving, Hayes stabbed a man on the morning of Thanksgiving after some holiday drinking. Her defense? She said that she “thought he was a turkey.” She also threatened another woman with a carving knife. Hayes admitted that she started early celebrating the holiday with “Four Loko” but later insisted that they man stabbed himself in his stomach and right shoulder.

On the torts side, this year saw litigation in O’Connell v Macy’s Corporate Servs., Inc., 2016 NY Slip Op 31716, in which Keri O’Connell sued the parade sponsor for injuries from the famous balloons. She was one of the handler for one of the balloons and another employee was assigned to trail the balloon handlers in an all-terrain-vehicle. She was injured while handling the Buzz Lightyear balloon when a golf cart rolled over her foot, causing a fracture. It was not Buzz that was the culprit however. Rather it was the guy in the golf cart. The Court granted summary judgment this year due to the fact that the Plaintiff “knowingly and voluntarily consented to the Release via an electronic consent as part of her online Application, and that the Plaintiff would not have been able to complete her online Application without checking off on the Release as part of said application.” In other words, she waived being run over by a golf cart.

Of course, the balloons themselves have been tortfeasors in past parades. In 1997, high winds pushed giant displays of the Pink Panther, Barney, Cat in the Hat, and others from side to side. The 43 mph winds brought down various balloons, with Barney, Pink Panther, Quik Bunny, and Cat in the Hat succumbing along the course of the parade. A police officer actually took a knife to the Pink Panther. Around 72nd street, the Cat in the Hat hit a lamppost and Maria Clohessy and Kathy Caronna both suffered head injuries during the incident. Caronna sued after spending a month in a coma after being hit by falling debris.

This year saw more Black Friday lawsuits from injuries in prior years (generally subject to a two-year statute of limitations). One such case now in court was brought by Amanda DuVall, 28. DuVall got into line on Thanksgiving evening for the Walmart sale in an effort to get a $49.99 tablet. She was one of the first in line but was knocked to the ground and stomped by other customers pushing to get a $49.99 tablet. DuVall said she waited three hours. She argued that Walmart violated the Consumer Protection Act by failing to tell customers that the store did not have enough tablets for demand — causing the stampede. She is asking for $75,000 but Walmart moved the case to federal court and is contesting the case.

While proximate causation is often cut off by the intentional torts or criminal conduct of third parties, courts have extended liability in some cases. For example, in Weirum v. RKO decision holding a radio station liable for injuries caused to a third party when teenagers drove recklessly to find The Real Don Steele in his marked van. The court held that the reckless driving was a foreseeable response of teenagers to the promise of free concert tickets. Of course, these were not teenagers but Black Friday fatalities are infamous.
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Michael Hobbins was shot after being mistaken for a wild turkey by a fellow hunter in Union County, Pennsylvania in 2010. Leroy Miller was following a turkey when he heard a noise and took the shot. He bagged Hobbins who was blinded and suffered aneurysms due to the injury.

To make matters worse, Miller is a convicted felon and is barred under state law from possession of a firearm for hunting or self-defense. Accordingly, Miller was in violation of a statute in addition to being negligent.

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Brian and Christa Caponi of Gulf Breeze Florida was not trying to bag a Turkey but raise a pet. However, her neighbor, Jacob Hayden Provo, 18, saw something more tangible: a Thanksgiving dinner. Joshua Warren Anderson, 19, and Provo used a bow and arrow to kill Tom. While the Caponi’s have 50 dogs, cats, chickens, and other animals, “Tom the Turkey” was like a dog to their family. They have been charged with armed burglary, armed trespassing, theft of livestock and animal cruelty.

The crime was captured on the surveillance system of the Caponi family. When police pulled over Provo, he allegedly lied and said he killed the bird in a nearby city. He later confessed.

These cases are difficult in torts because such pets are valued at their replacement costs rather than their sentimental value. In the eyes of the law, Tom is simply an Eastern wild turkey worth $300. To capture the pain and suffering in such acts, plaintiffs will often proceed on negligent or intentional infliction of emotional distress claims.

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Thanksgiving means one thing for personal injury lawyers: food poisoning. The problem is that the larger the case the more difficult the causation. A case in point is the aftermath of the potluck dinner this year at a Mormon church in Logandale, Nevada. Not sooner had people finished their meal that they began to run for bathrooms with vomiting and diarrhea. The food poisoning sent over a 100 people to clinics and hospitals. Officials are trying to determine what dish was responsible for the poisoning but the evidence may have been lost. In a similar case (Samson) below, the doctrine of res ipsa loquitur was applied. However, for such a large gathering with different dishes, the factual cause of the poisoning would have to be found. An alternative approach would be to pursue the Church itself for failure to supervise or monitor such food services. However, it was clearly understood that this was a potluck by those gathering at the church.

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Putting aside the food, the company at Thanksgiving can be lethal. Last year, we had the assortment of family members arrested in brawls, including a sister who stabbed her brother with a fork over Thanksgiving dinner. However, none of these cases prepared the guests at the dinner with Paul Merhige who snapped at a Thanksgiving dinner in 2009 and killed four family members. Merhige later pleaded guilty in the deaths of his 73-year-old aunt Raymonde Joseph, his cousin’s 6-year-old daughter Makayla Sitton, and his 33-year-old twin sisters Carla Merhige and Lisa Knight.

His parents were later sued by his cousins Muriel and Jimmy Sitton. The dinner was held at the Sitton house with the Merhiges and their son Paul. They alleged that the Merhiges knew that their son was unstable and hide the danger from them and the other guests. The lawsuit therefore advanced a novel negligence claim. Normally, criminal actions will cut off legal causation, though not always. In some cases, crimes have been found foreseeable. However, a court recently dismissed the case. Palm Beach County Circuit Judge Meenu Sasser ruled that the parents are not responsible for the actions of their adult children. In other words, you eat Thanksgiving dinner with adults at your own risk. While they can clearly sued Paul Merhige, he is likely judgment proof.
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We have the usual array of Thanksgiving burn cases that overwhelmingly involve deep-fried turkeys. One such case Serafino Alfe, 30, outside of Chicago who described his accident as a case where “I basically fried myself” when he was frying a turkey for an annual fundraiser and tripped right into the deep fryer. No lawsuit have been filed in such cases where negligence only injures the negligent party.

Also from my home town was the hospitalization of 7 people in a Thanksgiving dinner. The host used a charcoal grill inside the home and served up heaping helpings of carbon monoxide poisoning. Twenty people reported feeling sick. The case remains within the statute of limitations, but a negligence action would appear an obvious possibility (even with plaintiffs’ conduct).

One fairly straightforward tort and criminal case from 2011 is from Omaha, Nebraska where Cindy Kellogg, a grandmother making Thanksgiving dinner, was shot in the arm. The man, however, can defend himself that this was accidental . . . he was aiming at the fleeing children. Her 14-year-old grandson fell fleeing the man who starting shooting at playing children for no apparent reason. Incredibly, however, there is still no record of an arrest of the man.

Source: KETV
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Brian and Christa Caponi of Gulf Breeze Florida have a potential tort claim against their Panhandle, Florida neighbor who (with a friend) used a bow and arrow to kill their pet Turkey. While the Caponi’s have 50 dogs, cats, chickens, and other animals, “Tom the Turkey” was like a dog to their family.

The two arrested teens said that they saw a 30-pound Thanksgiving dinner rather than a pet. They have been charged with armed burglary, armed trespassing, theft of livestock and animal cruelty. As we have discussed, these cases are difficult in torts because such pets are valued at their replacement costs rather than their sentimental value. To capture the pain and suffering in such acts, plaintiffs will often proceed on negligent or intentional infliction of emotional distress claims.

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2011 Listing
A company in Fremont, California is facing a hostile work environment over ridiculing an employee for her celebration of Thanksgiving. Promila Awasthi, an Indian-born American citizen works at Infosys as a computer consultant, alleges that she faced a hostile work environment for celebrating Thanksgiving and was refused compensation for overtime hours worked. Infosys is a large India-based technology outsourcing company with offices in the United States. She alleges that her bosses made fun of her celebrating an “American” holiday because she is Indian and insisted that she work on Thanksgiving Day. She said that they responded to her request to celebrate Thanksgiving by calling her an “ABCD,” which stands for “American-Born Confused Desi.”

A Texas court is looking into whether copying Turkey cooking instructions is a copyright violation.

Greenberg Smoked Turkeys has sold turkeys with some simple instructions composed of three short paragraphs. It also posted those instructions on the web. Later it found the same or similar instructions appearing on its competitor’s website for Goode-Cook. The case will turn on the “merger doctrine” and the principle that, while ideas are not copyrightable, it is possible to copyright how those ideas are expressed. Here is the challenged instructions:

Our turkeys arrive at your door ready to eat. Refrigerate immediately. The turkey will keep in the refrigerator for 6-8 days. If you do not plan to use it in that length of time, it should be frozen.

We recommend that our turkeys are eaten chilled or at room temperature — just slice and enjoy!

If heating is required, follow these instructions: place turkey in a Reynolds® Oven Bag, which can be bought at your local grocer. Do not add flour to the bag. Cut 6 to 7 small slits in the top of the bag. Heat at 300 degrees for 6 minutes per pound.

That is some pretty generic information to be placed under copyright protection, in my view.

Source:

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In Florida, a major tort action has been filed two years after a massacre at a Thanksgiving dinner where a six-year-old South Florida girl and three others were killed. The lawsuit alleges that Michael and Carole Merhige were negligent because they knew their son was planning to attend the Thanksgiving event, even though he was unstable and uninvited. It was filed by Muriel and Jim Sitton, and Antoine Joseph, whose wife was killed by Paul Merhige. The complaint alleges that his parents were aware of his violent propensity and did nothing to warn them that he would be attending their Thanksgiving dinner in 2009. It includes an alleged statement by his mother to her daughter that she hoped her son wouldn’t “come and kill us all” in advance of Thanksgiving.

There is also an intriguing claim that since Paul Merhige’s father was a former CIA agent and he had particular skills and training to prevent the massacre.

The case resembles the famous 1976 ruling in Tarasoff v. Regents of the University of California. and the imposition of liability on a university. See Tarasoff opinion. In that case, Prosinjit Podder, a graduate student at Berkeley, fell in love with Tatiana Tarasoff. When she stated that she wanted to date other men, Podder went to counseling at the University Health Service and is treated by psychologist, Dr. Lawrence Moore. When he told Moore that he wanted to get a gun and kill Tarasoff, Moore sent a letter to campus police who interviewed Podder and decided that he was not a risk. Podder then went ahead and murdered Tarasoff. Podder was found legally at fault.

Here the parents are being accused of failing to warn or act in light of Merhige’s history of emotion and mental problems. Adding to the alleged failure was the careful planning of their son who acquired 4 guns and ammunition, taking $12 thousand out of the bank, and buying a cover for his car that he used to hide it.

GEORGIA v. BARTELS AND MARSH (2010)
Our winners for the worst Thanksgiving celebration last year was the dinner held at the Georgia home of Patty Jo Marsh and her husband, who decided that the best activity after Thanksgiving dinner was to give their seven children tattoos using a home-made tattoo device.

The parents borrowed a tattoo machine from a friend and used a needle made from guitar strings to give six of their seven children tattoos after Thanksgiving. The children range in age from 10-17. The ten year old was spared the experience.

The tattoos were spotted by their biological mother when they returned home (much like the earlier Fresno case). She was not pleased and called child welfare. In Georgia, it is illegal to give tattoos to children under 18 and it is illegal to give tattoos to anyone without a license.

The couple insists that they did not know it was illegal and only gave into the demands of the kids that they wanted small cross tattoos like their own.

They have been charged with cruelty to children, reckless conduct and tattooing without a license. They also could face a lawsuit from the biological mother since the children were too young to consent to tattoos and such tattooing of children is legal in most states. Absent legally recognized consent (as opposed to actual but invalid consent of a minor) the parents can be charged with battery. They cannot use substituted consent in such a circumstance for their children in most states.

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SEILER v. JIMMY JOHN’S (2009)
A tort action in Chicago presents a somewhat novel dispute over the proper way to eat a sandwich. Mackenzie Seiler went to Jimmy John’s restaurant for a Turkey Tom sandwich. He went into anaphylactic shock after he bite into the sandwich, which turned out to be tuna and filled with cheese and mayonnaise. A person with severe allergies, he had specifically told them to hold the cheese and mayo — let alone the tuna. However, the restaurant says it was his fault for failing to properly unwrap the sandwich before biting into it.

He is now seeking more than $50,000 from Jimmy John’s after going into shock.

Seiler’s attorney, Richard Egan, insists that his client ate the sandwich in a traditional way: by peeling back one end of the wrapped sandwich and eating it like “a burrito.”

Jimmy John’s says that his eating habits are contributory negligence and that he is responsible for his three days in the hospital. The restaurant insists that a reasonable person removes the sandwich from its wrapping, inspects it, and only then bites into it. (I also tend to weigh the sandwich on an atomic scale to confirm proper weigh and measure the sandwich to guarantee that it is properly proportioned . . . but that is just me).

Once again, I do not get why the restaurant wants to fight this one. How many jurors does the restaurant think actually unwrap a sandwich completely and do an inspection before chomping down? This fight occurred because the restaurant refused to pay his hospital costs.

I am particularly interested in the experts that will be called by either side in this dispute. The EU must have a rule on this. Of course, there may be some raw regionalism in the case with the restaurant accusing Seiler of eating “like a New Yorker.” I would suggest the sandwich truck guys and the guys at the Billy Goat Grill as obvious choices for experts on sandwich tactics and customs. Of course, as shown in the case of TJ Hooper, industry custom is not always controlling, so the court could articulate a new standard for sandwich consumption.

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FLORIDA v. SMITH (2009)
Thanksgiving holidays are notorious for bringing out family stress and divisions, but know family does it quite like the Smiths of Hudson, Florida who ended up having Thanksgiving in jail over a disagreement involving the proper way to stuff a Turkey. Along the way the committed a variety of torts and crimes.
Elizabeth Smith, 21, was shocked when she woke up at 7 a.m. on Thanksgiving Day to stuff her turkey — only to find that her father-in-law Donald “Junior” Smith, 49, had beat her to it. It was not how she wanted it stuffed and, to make matters worse, he used celery which her husband Tristan Smith, 21, is allergic to. A shouting match erupted.

Junior blamed Elizabeth as incompetent and said that no one was helping him cook. Elizabeth said that she wanted to cook but no one woke her. Tristan intervened in defense of his wife. It soon turned physical as the men rolled around the house and ended up in the room of Tristan’s 3-year-old son and 5-month-old daughter.
Then Tristan’s mom, Joan Ethel Brewster, 54, grabbed Elizabeth by the hair and scratched her — pulling her hair out and causing bleeding on her face.

Joan called the police and she and Junior were arrested and booked . . . wait for it . . . at the Land O’Lakes Jail.
They were held for Thanksgiving and had dinner in jail — presumably properly prepared by others.
After the arrests, Elizabeth finished cooking the meal and held Thanksgiving for the remaining relatives. In the ultimate happy ending, she insisted that “[i]t still turned out all right.”

The result was both criminal and tort helpings of assault and battery.

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IN RE JEAN KASPER (2009)

Last year, we also had a curious product liability and negligence allegation. When Lisa Blair’s mother, Jean Kasper, died, she wanted to carry part of her mother with her. She consulted with a funeral home on the use of heart-shaped lockets for carrying the ashes. She filled identical lockets for her seven daughters and stepdaughters. She alleges that she dropped off the lockets to be sealed and tested by the funeral home.

At Thanksgiving dinner, Blair noticed that the mashed potatoes had small flecks in them, but continued to eat. After consuming most of the potatoes, she looked down and realize that her mother’s ashes had fallen into the mashed potatoes and that she had consumed them. She also discovered that the lockets on her daughters and stepdaughters had also leaked into their food.

Cresmount funeral home will not discuss the allegations. Blair could allege an assortment of torts from negligence to negligent infliction of emotional distress. If the funeral home represented that the lockets were sealed, it might be able to survive a motion to dismiss. There is also the possibility of a products claim. However, these lockets were not made for this purchase and this is not likely a case for foreseeable misuse against the manufacturer.

Guests can bring potential liability for alleged attractive nuisances found during a Thanksgiving dinner. At least that is what Michael and Deborah Castor discovered. They invited their niece, Teresa Aponte and her daugher Erica (age 7) to share a Thanksgiving feast. According to the court, “[f]ollowing dinner, accompanied by her cousin, Erica went outside and crawled under/through an electric wire fence that enclosed appellees’ horse paddock area. Erica was subsequently kicked in the face by appellees’ horse, sustaining injury.”

The niece sued her uncle and aunt. The question was Erica’s status as trespasser or an invitee. The case also explored the meaning of an attractive nuisance.

The court held as follows:

In this case, it is undisputed that Erica was invited over for Thanksgiving dinner and that she did not obtain permission from appellees or any other adult to exit the house or visit the horse penned in the paddock. Moreover, it is uncontested that Erica was never permitted by appellees to roam freely in “any part of the subject property without both parental supervision and permission.” Upon a thorough review of the record, and finding no genuine issues of material fact, we find that Erica was only invited to appellees’ home for Thanksgiving dinner and was not invited to freely explore the property. Accordingly, we find that once Erica left the house and entered the horse paddock area, she exceeded the scope of appellees’ invitation and became a trespasser or a licensee on appellees’ property.

Normally, a landowner would only owe a trespasser or licensee the duty to refrain from wanton, willful or reckless conduct which is likely to injure the licensee or trespasser. . . .However, the Ohio Supreme Court has held that the amount of care required of a landowner to discharge a duty owed to a child of tender years, who is exposed to danger on the landowner’s property, is greater than that required to discharge a duty to an adult exposed to the same danger. Di Gildo v. Caponi (1969), 18 Ohio St. 2d 125, 47 Ohio Op. 2d 282, 247 N.E.2d 732, paragraph one of the syllabus; and Bennett v. Stanley (2001), 92 Ohio St.3d 35, 39, 2001 Ohio 128, 748 N.E.2d 41. The rationale for this rule is that HN7″‘Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter ***. The same discernment and foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced persons habitually employ; and therefore, the greater precaution should be taken, where children are exposed to them.’” Di Gildo at 127, citing 39 Ohio Jurisprudence 2d 512, Negligence, Section 21. “Even child trespassers are accorded special protection in Ohio tort law.” Bennett, 92 Ohio St.3d at 40.

In recognizing that “children are entitled to a greater level of protection than adults,” the Ohio Supreme Court in Bennett adopted the attractive nuisance doctrine, contained in Restatement of the Law 2d, Torts (1965), Section 339 . Bennett set forth
the attractive nuisance doctrine as follows:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

“(e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.”

In determining a landowner’s duty to a child, Bennett held that “whether an apparatus or a condition of property is involved, the key element should be whether there is a foreseeable, ‘unreasonable risk of death or serious bodily harm to *** children.’” Id. at 42, citing Restatement, Section 339(b). However, “even when a landowner is found to have an attractive nuisance on his or her land, the landowner is left merely with the burden of acting with ordinary care” and “does not automatically become liable for any injury a child trespasser may suffer on that land.” Id.

. . . Appellant argues that appellees’ horse created an attractive nuisance and, as such, appellees owed Erica the duty of ordinary care. We, however, find no authority in Ohio law which establishes that an animal is “an artificial condition” which invokes the doctrine of attractive nuisance. Accordingly, we find that the attractive nuisance doctrine is not applicable in this case. Nevertheless, based upon the holdings and rationale in Bennett and Di Gildo, we find that “children of tender years, and youthful persons” are generally entitled to a degree of care commensurate with their inability to foresee and avoid dangers, even when trespassing.

In considering whether appellees breached their duty to Erica, we must first consider whether it was foreseeable to appellees that Erica would trespass into the horse paddock area while on their property. Appellant argues that it was foreseeable that Erica, a child guest at Thanksgiving dinner, would wander out to the horse paddock. We, however, find that the undisputed evidence is to the contrary.

First, neither on the day in question, nor during earlier visits, was Erica ever given unfettered access to appellees’ property; rather, permission and adult supervision was required. Second, at no time was any child guest allowed “to roam freely around the subject property or enter the area in or around the horse paddock area.” Third, according to Mr. Castor, on previous visits to the property, Erica “never unilaterally left the house or entered the area in or around the horse paddock area.” Fourth, the horse was enclosed with an electrified wire fence, which, according to Erica, she was warned to avoid. Based on these undisputed facts, we find that it was not foreseeable to appellees that Erica would trespass upon their property into the area of the horse paddock.

Assuming arguendo that a genuine issue of material fact exists regarding whether it was foreseeable to appellees that Erica would trespass into the horse paddock, we note that the degree of care owed by appellees only would have to be proportionate to Erica’s inability to foresee and avoid the perils that she may encounter and, in no event, would appellees’ duty to Erica extend to dangerous conditions that were obvious and realized by her. See Bennett, supra at 43.

In this case, it is clear that Erica had an appreciation that horses presented a risk to her. Erica testified that she had been told “never to go behind a horse”; she knew that she was not allowed to be around horses, appellees’ horse, or in the corral, without a parent or adult supervision; and that, although she did not remember anyone ever telling her specifically not to go into the corral, she was “pretty sure that *** [appellees] thought that [she] had the common sense not to go there” and that “they knew that if [she] were going to that [she] would ask for an adult to come with [her].”

Appellant, however, argues that appellees should have warned Erica and her parents regarding this horse’s history of aggressive behavior toward a sheep that entered its enclosure. However, based on Erica’s own testimony, we find that she knew horses presented a risk, that she was not to go near the electric fence, and that an adult was supposed to accompany her around horses. Accordingly, we find that the potential danger any horse posed to Erica was both known and obvious to her. We therefore find that appellees owed no duty to Erica or her parents to provide additional warnings regarding this horse in particular.

Based on the foregoing, we find that there are no genuine issues of material fact and that appellees are entitled to summary judgment as a matter of law. Erica was a trespasser on appellees’ property and, therefore, appellees were only required to refrain from willful, wanton and reckless conduct. However, to the extent that Erica’s age would entitle her to a greater degree of care than that normally afforded a trespasser, we find that appellees breached no duty to Erica insofar as she fully realized the obvious risk that horses presented, and proceeded at her own peril. Accordingly, we find appellant’s first and second assignments of error not well-taken.

On consideration whereof, the court finds substantial justice has been done the party complaining and the judgment of the Williams County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal.

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DENNIS V. DENNIS
2001 Del. Super. LEXIS 11 (2001)

The Dennis case shows why a good lawyer requires relatives to sign waiver forms before the start of any holiday. Here are the facts from the case:

FACTS

On November 16, 1998, Plaintiff [*2] Crystal Dennis (“Crystal”) and her thirteen-month-old son, Velvin Morgan, Jr. (“Velvin”)(collectively, the “Plaintiffs”) went to the home of Mr. Dennis, who is Crystal’s father and Velvin’s grandfather. Defendant Stephanie Dennis (“Stephanie”), who is Crystal’s sister, was also present at her father’s home. The sisters had gathered at Mr. Dennis’s residence in order to clean it for Thanksgiving dinner. While the daughters were cleaning, Mr. Dennis babysat Velvin. While all three adults and Velvin were in the kitchen prior to eating breakfast, Stephanie warmed water in the microwave for hot tea. She took the cup out of the microwave and placed it on the counter. Velvin, who was sitting on his grandfather’s lap, got up and walked over to the counter, reached up and poured the scolding water on himself. As a result, he sustained first and second degree burns on his neck and chest. The Plaintiffs filed suit against Mr. Dennis and Stephanie (collectively the “Defendants”), alleging that the Defendants’ negligence was the proximate cause of Velvin’s injuries.

The issue was whether the daughters could claim to be business invitees in coming their father’s house — in order to get around the state’s Guest Statute. The Delaware Guest Statute, 25 Del. C. § 1501, provides:

No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused [*4] by the wilful or wanton disregard of the rights of others.

The daughters, however, claimed that “since Crystal would have been unable to perform the cleaning [*6] services for her father unless she could bring Velvin with her and have Mr. Dennis babysit him, he has received a benefit. Further, the Plaintiffs assert that Crystal was a business invitee 10 and that status should be imputed onto Velvin.”

Outcome: The Court was not convinced and found the lawsuit against the father to be properly dismissed.

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SAMSON v. REISING
62 Wis. 2d 698 (1974)

The underlying facts show that on Tuesday, February 6, 1968, Pearl Samson attended a luncheon, which was put on by the Wauwatosa High School Band Mothers Association (an organization organized to give support to the high school band) at the Wauwatosa Trinity Episcopal Church. Pearl Samson paid $ 1.25 and ate a luncheon consisting of turkey salad and dessert. On Wednesday evening she became nauseated. She was unable to work on Thursday and Friday.

The symptoms subsided, and she returned to work on Monday, February 12th. A few days later, however, she again was obliged to miss work because of her illness. After these symptoms recurred every few days, she visited her doctor, who was unable to help her, and in the nine-month period following the luncheon she lost 22 pounds and periodically suffered from diarrhea, vomiting, cramps, and stomach pain. Eventually she was referred to a specialist, who determined that Pearl Samson’s condition was the result of salmonella food poisoning and that, as a consequence, she suffered a deficiency of the lactase enzyme in her intestinal tract.

This enzyme is necessary to properly digest foods with a lactose base, such as milk and dairy products. She claims that her illness recurs whenever she ingests foods which contain milk products. There was testimony that she found it impossible to be sure that the food she ate contained no such products and that she became severely ill sometimes twice a month. Her physician testified that this condition is permanent.

There is evidence that the turkey salad eaten at the luncheon was contaminated with salmonella bacteria. Dorothy G. Wood, one of the defendants, testified that she had taken some of the leftover salad home for her family to eat. Her family ate some of that salad and had no ill effects. When she received reports that some of the guests at the luncheon had become ill, she notified the chief sanitarian of the Wauwatosa Health Department. He submitted the sample of the remaining salad to the Milwaukee Food Laboratory. The report from the laboratory indicated the presence of the salmonella bacteria.

There was testimony by Dorothy G. Wood that she and Marjorie E. Borror were co-chairmen in charge of the luncheon, that approximately a month before the luncheon they purchased nine frozen turkeys from Kohl’s and had them stored in Kohl’s freezer until they were needed. Before the date of the luncheon, Dorothy Wood picked up the frozen turkeys and delivered them to other members of the luncheon committee. She named eight members of the committee to whom she delivered the turkeys to be cooked in their own homes. She stated that she delivered the turkeys to Margarette H. Hoffman, Charlotte G. Soleski, Violet E. Gullicksen, Betty Randa, Grace A. Kerler, Marjorie E. Borror, Ruth E. Johnson, Jane Frances, and one other. Each of these persons are defendants in the instant lawsuit. In addition, Audrey Riesing and Phillis Gill, together with Dorothy Wood, are named as defendants.

Dorothy Wood stated that she did not cook a turkey, but that nine ladies, one of whom she could not name, cooked them sometime between the day she delivered the turkeys and the afternoon of February 5, 1968, when the ladies brought the cooked turkeys to the Trinity Episcopal Church kitchen. The turkey salad was prepared in the Trinity Episcopal Church kitchen.

After the salad was prepared, it was taken to a refrigerator located at the Methodist Church. The turkey salad was returned to the Trinity Episcopal Church at 10 a. m. on Tuesday, February 6th. The salad received no refrigeration from the time it was taken from the Methodist Church. Prior to the time of serving, the turkey salad was held in large containers, which had been obtained from the Methodist Church. Dorothy Wood testified that the church kitchen in which the salad was prepared was “clean.”

At trial, Joseph D. Gorski, the chief sanitarian for the Wauwatosa Health Department, testified that salmonella is a bacteria common to the intestinal tracts of fowl. He said that food containing salmonella bacteria can be rendered safe for eating by exposure to heat and that a meat temperature of 146 degrees Fahrenheit for thirty minutes or 161 degrees for thirty seconds would kill the organism. Properly cooking a turkey would render it free from salmonella bacteria.

However, even though a turkey were properly cooked, it could be contaminated if it came in contact with utensils or other objects which touched the raw contaminated turkey. Gary V. Doern, a bacteriologist, also testified that some individuals are unknowing carriers of the salmonella bacteria and can contaminate food products by touching them.

. . . In this case nine turkeys were cooked, each by one of nine defendants, but not all of the 11 defendants cooked the turkeys. It does appear, however, that all of them participated in the preparation of the salad.

Outcome: This case ultimately turned on the court’s interpretation of the doctrine of res ipsa loquitur used to prove such cases with a paucity of proof. The doctrine requires “(1) The event or accident in question be of the kind which does not ordinarily occur in the absence of someone’s negligence; and (2) the agency or instrumentality causing the harm must have been within the exclusive control of the defendant.”

The court found that first criteria satisfied but ruled that it failed on the second criteria of exclusive control. They could not prove which of the band mother’s Turkeys was the culprit so all of the band mothers walked.